[Plaintiff-Appellee] Plaintiff (Attorney Choi Young-soo et al., Counsel for plaintiff-appellee)

Defendant (Law Firm Grandmark, Attorneys Kim Shin-chul, Counsel for the defendant-appellant)

March 11, 2011

1. The defendant,

A. At the same time, upon receiving KRW 20,689,655 from the Plaintiff, deliver to the Plaintiff the real estate stated in attached Table 1;

B. The Plaintiff shall pay the amount calculated by applying the ratio of KRW 568,965 per month to KRW 715,264 and from January 21, 2010 until the completion date of delivery of the real estate in the separate sheet No. 1. 568,965.

2. The plaintiff's remaining claims are dismissed.

3. 40% of the costs of lawsuit is borne by the Plaintiff, and the remainder 60% is borne by the Defendant.

4. Paragraph 1 can be provisionally executed.

The Defendant shall deliver to the Plaintiff the real estate stated in attached Form 1, and pay to the Plaintiff the money calculated by applying the ratio of KRW 568,965 per month from January 21, 2010 to the completion date of delivery of the real estate stated in attached Table 1.

1. Basic facts

A. The real estate listed in the separate sheet No. 1 (hereinafter “Non-102”) and the real estate listed in paragraph 2 (hereinafter “Non-101”) were owned by the Meart Development Co., Ltd. (hereinafter “Meart Development”).

B. On April 7, 2005, the Defendant: (a) on the lease of No. 102 and No. 101 from Meart Development to 1,000,000 won per rent, paid KRW 40 million as a security deposit; and (b) on the location of No. 102 and No. 101, as of June 30, 2005, registered a business for the automobile maintenance business; and (c) until now, occupied and used the automobile maintenance business as prescribed in No. 102 and No. 101.

C. Meanwhile, with respect to non-102, the procedure for compulsory auction was initiated on June 11, 2008 by Suwon District Court No. 2008tagi27430, and on January 21, 2010, the Plaintiff completed the registration of ownership transfer in its name as to non-102 on January 26, 2010.

D. The Defendant did not pay that the Plaintiff paid to the Plaintiff after the Plaintiff acquired the ownership of Non-102. Accordingly, on April 12, 2010, the Plaintiff terminated the lease on the grounds of more than a two-year grace period for the Defendant, and the said notification reached the Defendant on April 15, 2010.

E. The Defendant also paid only the management expenses up to October 2010 to the Plaintiff, and did not thereafter pay the management expenses. From November 201 to January 10, 201, Non-102 and Non-101 are KRW 1,382,844.

【Ground of recognition】 The facts without dispute, Gap 1 through 3, 6, and 8 (including paper numbers), and the purport of the whole pleadings

2. Determination:

A. Determination as to the request for extradition under non-102

(1) Obligation of delivery

The Commercial Building Lease Protection Act shall apply to the lease between the defendant and the Mart Development. The defendant delivered Nos. 102 around April 7, 2005 and registered as a business operator on June 30, 2005, and thus, the plaintiff purchased Nos. 102 and succeeded to the lessor's status as to Nos. 102 from Mart Development at the same time. However, on April 12, 2010, the plaintiff terminated the lease of Nos. 102 on the ground of the defendant's rent delay, and thus the lease between the plaintiff and the defendant as to Nos. 102 was terminated. Therefore, the defendant is obligated to deliver Nos. 102 to the plaintiff, barring special circumstances.

Accordingly, the defendant asserts that the termination of the plaintiff on the ground of rent is unlawful since the defendant could not use and benefit from No. 102 because the building containing No. 102 is located in the place where the building could be removed, due to the problem of the right of passage of neighboring land. Thus, the defendant's claim that the termination of the plaintiff on the ground of rent is unlawful because the payment of rent is just for reasons for the failure of rent. According to the statement of No. 7, No. 1 and No. 4, No. 102 is part of the building "No. 102" (see the part on the indication of one building) of the building "No. 1, No. 1, No. 1, the owner of the building at the shopping center's shopping center's building "(see the part on the indication of one building)" in the list No. 1, No. 1, the owner of the building filed a lawsuit against the owner of the building at the shopping center's site and applied for compulsory execution based on it.

(2) Concurrent performance

Even if there is a duty to deliver, the Defendant asserts that it is impossible to comply with the request for extradition until the deposit is returned. The Defendant paid 40 million won to Meart Development as a security deposit with respect to 102 and 101, and the amount equivalent to the ratio of 40 million won to the size of 102 out of 40 million won is 20,689,655 won [=40 million won x 64.50 square meters x 64.50 square meters x 60.20 square meters (non-101 square meters)] ± [64.50 square meters ＋ 60.20 square meters (non-101 square meters)]. Thus, the Plaintiff is obligated to return 20,689,655 won to the Defendant with the Plaintiff’s obligation to return the deposit and the Defendant’s obligation to deliver 102 square meters from the Plaintiff’s simultaneous performance.

B. Determination on the claim for rent and management expenses

(1) Rent;

On January 21, 2010, the Plaintiff acquired ownership as to non-102 and succeeded to the lessor status as to non-102 at the same time, the Defendant did not pay the Plaintiff the rent. The rent with respect to non-102 and non-101 is KRW 11,100,000 per month (including value-added tax) and the amount equivalent to the ratio of non-102 size among the above amount is KRW 568,965 [=10,00 won + 64.50 square meters + 64.50 square meters + 60.20 square meters]. Thus, the Defendant is obligated to pay the Plaintiff unjust enrichment equivalent to the rent or rent calculated in the ratio of KRW 568,965 per month from January 21, 2010 to the date on which delivery under non-102 is completed.

The defendant asserts that there is no obligation to pay rent, etc. since he did not use and make profits from No. 102 as seen in paragraph (1) of the above A, but the defendant's above assertion is rejected for the same reason as seen in the same paragraph.

(2) Management expenses

In addition, the Defendant did not pay management expenses for non-102 and non-101 to the Plaintiff from November 1, 2010 to January 10, 201, and the aggregate amount of management expenses during the said period is KRW 1,382,844, and the amount corresponding to the ratio of non-102 to non-102 is KRW 715,264 (=1,382,844 x 64.50 square meters + 64.50 square meters + 60.20 square meters). Thus, the Defendant is obligated to pay the Plaintiff unpaid management expenses to the Plaintiff KRW 715,264.

Although the Defendant asserts that there was no obligation to pay management expenses because the Plaintiff did not perform any management act, it does not accept the Defendant’s assertion on the ground that there was no evidence to prove that the Plaintiff did not perform management act.

4. Conclusion

In short, the Defendant is obligated to deliver KRW 102 to the Plaintiff at the same time with the payment of KRW 20,689,655 from the Plaintiff, and ② to pay the Plaintiff the unpaid management expenses, KRW 715,264, and KRW 568,965 per month from January 21, 2010 to the completion date of delivery of KRW 715,264, and KRW 102, and thus, the Plaintiff’s claim is accepted within the scope of the above recognition and is dismissed as the remainder is without merit.

[Attachment List omitted]

Judge Lee Lee Jae-soo